One of the main areas of the theory of law is the legal technique. It is she who is called to observe order in the law-making sphere. In the article, we consider in more detail its concept, the history of formation, the requirements of legal technology for documents, classification criteria and types. Compliance with the rules in this area guarantees citizens the "right" laws and other legal acts with a clear structure, eliminating the ambiguous, vague and ambiguous interpretation, clear wording, which allows to convey their meaning to each person individually and society as a whole.
Legal technique: place in TGP
At the present stage, it is difficult to call the theory of state and law (TGP) a single science that would give an idea of the state and legal life of a particular society. The lively discussions about whether it should remain unchanged have been going on for several years: if reform is necessary, then in what form and order? In practice, the proposal for the division of science into two different theories — law and state — sounds more and more confidently. The process is slow but true. This also manifests itself in the gradual transition to political science of certain issues (regimes, territorial structure, etc.). In order to understand what place the legal technique occupies in all this, it is necessary to study the structure from the very beginning.
So, having the status of an independent science, according to the Russian classification, TGP includes the following large and relatively independent blocks:
- Anthropology of law and state - studies the issues of their origin and further evolution.
- The axiology of law and the state - concerns the issues of their value.
- Actually TGP itself.
- Philosophy of Law and State.
- Sociology of Law and State.
- Comparative state science.
- Futurology of law and state.
Among all the mentioned branches of TGP, the theory of law has received the most development, it occupies a central place. This is a very vast area, the knowledge of which has been accumulated for centuries and is now interpreted and classified from various perspectives. The field of legal theory includes at least three autonomous main sections: legal technology, dogma of law, legal conflict resolution.
How did scientific views on legal technology evolve?
In this concept, it is customary to invest two meanings. Firstly, the legal technique means a certain system, a set of knowledge on how to carry out the process of law-making and subsequent law enforcement. Secondly, the concept implies a system of practical skills in drawing up normative acts and their further implementation.
The development of legal technology originates much later than the law itself. Although the lawyers of ancient Rome had already made their first attempts to implement the rule of brevity. However, F. Bacon should be considered the founder of legal technology. He categorically spoke out and wrote not only about the brevity of presentation, but also about the extreme accuracy of the “language” of laws, since this is the main factor in their ambiguous and free interpretation.
Following him, the idea was picked up by S. Montesquieu (pictured above). The French scientist in his work “On the Spirit of Laws” presented to the public some principles of their exposition (so to speak, future rules of legal technology): simplicity of a syllable, compressed normative documents, certainty.A serious advance in this area was the reasoning of the Englishman I. Bentham. He, in addition to the legislative language, touched on the internal structural structure of the normative act. However, R. Iering is considered to be the most outstanding scientist in the field of legal engineering. It was he who first introduced the very concept of legal technology into practice, classified and systematized accumulated knowledge, added a large number of new rules for drafting legislative acts, etc.
Legal subject
The general definition of any science sounds like "a sphere of human activity, the purpose of which is to obtain and systematize knowledge about the surrounding objective reality." Moreover, she has her own language and special methods, is characterized by validity and system. For any scientific research, not only what is being studied (subject), but how it is done (methodology) is of importance. In general, the subject of the study of jurisprudence are the laws that exist in the field of legal regulation. Further along the structure, there is a division into one or another area of social relations.
As part of the theory of law, the legal technique (concepts and types will be discussed later) also explores general patterns, but in the subject part. In fact, this is the sphere of lawmaking and its implementation in practice. For example, creating a Codex structure. However, it cannot be said that other branch sciences do not affect this area.
Thus, it is customary to understand the legal technique as the most general laws governing law-making, in the process of which regulatory documentation is compiled.
Methodology
In a general sense, it is a way of knowing the world around us. If we consider it in the framework of legal technology, then this is a set of initial scientific approaches, techniques and methods of studying legal activity, as a result of which regulatory documents are compiled. When we consider science, it is young enough and at the present stage continues to develop rapidly, therefore, it simply needs various methods, methods that allow to get to the bottom of the truth. Techniques of legal technology are a real tool of knowledge. It is customary to classify all methods into 4 large groups, each of which will be considered in more detail.
General scientific methods
They are applied in all, at least, very many sciences, since without their use the picture of various phenomena being studied will be incomplete or will not be revealed at all. The following basic general scientific methods are distinguished:
- Materialistic - allows you to consider the state and law in connection with human nature, the conditions in which people lived at a particular stage of history.
- Metaphysical - according to this method, the rules of conducting legal work are considered in isolation from other phenomena in order to study their essence more deeply, without being distracted by other points.
- System-structural method - considers civil law phenomena as an integral part of a single whole. It has found wide application in law-making when it is necessary to distribute separate norms among branches of law.
- Sociological - the study of absolutely any issue on the basis of evidence. In this regard, the legal technique uses tools similar to other branches of law, and not only: analysis of statistical data, various surveys of the population, interviewing, observation, questioning, mathematical techniques in the processing of materials, etc.
- Comparative - the essence of the method lies in comparing legal phenomena, concepts, processes and identifying their differences and similarities.
Logical methods
This group of methods has found very wide application in legal technology. These include:
- analysis - the conditional division of state law into separate parts in order to highlight the main or essential features;
- synthesis - the union of individual parts in order to see the big picture;
- analogy - is applied taking into account the experience of foreign countries;
- induction - the transition from a particular rule to something common;
- deduction - a conclusion about a particular way of inference based on something in common
Linguistic methods
Moreover, the concept of legal technology and its essence are inextricably linked with linguistic methods. Any thought has a verbal form, and the only way to convey it to another person. Any lawyer must master the art of beautiful and competent speech, and this applies not only to the statement of legislative acts, but also to the process of their application in practice in written or verbal form. Linguistic methods include:
- correspondence of terms to those concepts that they fix;
- compact legal documentation and an increase in its information content;
- ensuring clarity of accessibility of legal acts;
- application of text graphics.
Approaches to Understanding Legal Technology
A very lively debate of scientists is being conducted on this subject, and this is not surprising, because legal technology is a young science. However, if you try to group all available opinions, then two approaches to the problem can be clearly traced: narrow and wide. The first is conditionally called documentary, and it developed earlier than the second. A narrow approach interprets legal technology as the science of the proper preparation of legal documentation. And yet, most scientists prefer the second approach - an active (broad) one. According to him, the legal technique is the application in practice of proven and scientifically sound methods, methods, procedures and means of introducing law into the mind and, as a result, the activity and behavior of a particular species in particular and society as a whole.
The structure of legal technology
An attempt to rethink the concept of legal technology was first made by V. N. Kartashov, who proposed a new term, more general, in his opinion. As a result, he called this area of the theory of law legal technology. At the same time, it consists of several basic structural units, including legal entities. techniques, only in a narrower sense. He also highlighted legal tactics and strategy. It is possible to evaluate the work only from a positive point of view, but it is still impossible to fully agree with it.
Firstly, it is not quite right to combine intellectual and technical means of carrying out work into one group. Secondly, the strategy and tactics are fundamentally different from other techniques that include the legal technique (the concept and types are considered by us in the article). To summarize, we can say that this structure includes only two elements:
- actually legal equipment;
- legal technology.
Organization of legal work and approaches to it
It is here that such concepts as tactics and strategy find application as approaches used by a lawyer in their work. Therefore, talking about their inclusion in the structure is not entirely correct. Under the legal tactics should be understood a certain course of action, a line of behavior, consisting in planning the activities of a lawyer, its organization to achieve the goal. The strategy is a common guiding line, a set of principles that are aimed at fulfilling the main task (general and long-term plans, programs, forecasts).
Types of legal technology
This branch of the theory of law is not a chaotic set of any rules - it is fairly well systematized. Opinions on how many and which species can be distinguished are many, a moot point is regarding the classification criteria. Let's dwell on the main - stages of legal regulation. According to this criterion, the following types of legal equipment are distinguished, which have certain rules that make up their essence:
- law-making;
- publication of normative acts (hereinafter - n.a.);
- systematization n. but.;
- interpretative;
- law enforcement;
- law enforcement;
Legal technique: problems
Serious terminological disputes affecting the name of the sphere of civil law relations, which we traditionally call the jur. technology, especially active in recent years. They take as a basis the statement of V. M. Baranov that the given term is not exact, contradictory and is applied only because of the established legal tradition. And there is a grain of truth in this. The term is indeed quite ambiguous. To solve this problem, two approaches are used. In the first case, it is proposed to replace the concept of technology with technology, and in the second, to preserve both, but at the same time differentiate their values.
The most important thing in this case is not to lose meaning in the pursuit of terminology. After all, the value of legal technology is much more important than how it will be called. Compliance with the rules of this field of legal theory in the development, preparation of bills and other normative acts is a guarantee of their quality. Laws that are imperfect from a technical point of view are extremely difficult to apply in practice, and sometimes even completely impossible.
